Centre of Islamic and Middle Eastern Law

The Middle East in the 21st Century: An agenda for reform

by Chibli Mallat

Even the word "peace" - which meaning, in its use by Israel's new Prime Minister, reneging on all his country's commitments over the past five years, can ring as hollow a term as liberation, security or terrorism. There is no miracle word to save the turbulent Middle East, less so to define easy parameters to analyse the region and affect its future positively.

More contrasted binary set-ups, such as "Islam and democracy", "Western and Arab" (there are so very many variations: Oriental, Muslim on one side, European, American or French on the other), serve equally little purpose if wording is not carefully chosen: such contrasts easily reinforce theories of latent "clashes of civilisation", now adumbrated in a famous 1993 article in Foreign Affairs by Harvard Professor Samuel Huntington. These parameters can never offer an adequate prism, that is, unless one is intent to see the alleged clash result in a new Crusade.

At the same time - notwithstanding the warnings of serious authors like Edward Said against such essentialisms - one can hardly deny that there is an identifiable trend in the region which comes under the rubric of "Islamic fundamentalism". Islamic fundamentalism exists and is effective, even if one needs to look into all the different set-ups across the Middle East and the Muslim world at large to appreciate the phenomenon's many variations.

How then can one shun clash-of-civilisation types of essentialist analyses and yet account for an identifiable and real trend of fundamentalisms - Islamic primarily but also Jewish, Christian and Hindu? Granted binary parameters, let alone one-word panaceas, will not do, it may be safe to deploy those trustworthy indices which have served their purpose well to guide humanity's march through the twentieth century.

Whether for the Middle East or for the larger Muslim world, deployment of seasoned criteria and objectives can follow the three different political, economic, and cultural rhythms which societies and their analysts have well refined. For the political rhythm: "good" governance of state and society, including the way governments deal with regional and international crises; from the economic angle: expanding and balancing modes of production and distribution; and in the third, cultural, dimension: manufacturing basic consent and containing violent dissent by the appropriate renewal of the legal tradition.

Thus three objects, three speeds for change and three different angles for reform in a region where reform is badly needed.

1. Good governance

Throughout the Middle East the principal object of reform is the state. Again, there is no need, whatever the talk about the dangers of religious extremisms, which are real, to lose sight of the seasoned criteria which are as good for one citizen of the planet as they are for any other.

One may judge political governance by three criteria:

The first concerns representation for the people and alternation at the top. Representation means elections, and alternation supposes non-violent change of government. None of the 20 or so Arab countries knows peaceful change at the top. Leaders and kings die, are exiled or overthrown, but they do not alternate.

But some states have experienced, with mitigated success, middle-level representation. Two points can be made by way of the electoral agenda, granted that, after the Algerian disaster of the 1992 foiled elections, one must be circumspect about starry-eyed beliefs in pure democratic schemes.

First the request for free and fair elections must be encouraged inside and outside at all possible levels, with the hope that it will one day reach the top. Kurds queued from 4 a.m. on the morning of 19 May 1992 in 'safe haven' elections, and there were many more candidates than seats for the latest Kuwaiti, Lebanese, or Syrian elections for Parliament however one might appreciate the flaws in the process of public representation.

Second, more attention must be devoted to the need for recurrent elections. Governance will have turned a decisive page only where free and fair elections are held the second, consecutive time. One consequence for recurrence must be the belief in the need to ban parties, including those among the Islamists, which want to use elections to get there, and stop it ever after. This is well illustrated in Iran, which had known elections repeatedly since the Revolution, but which has, through its Council of Guardians, made certain that most liberal candidates are firmly excluded from the electoral process.

The second point about 'good governance' - a term coined by David Gore-Boothe - is the complex and detailed world of the rule of law. An Islamist who doesn't get a fair trial, is tortured in an Egyptian or Libyan jail, or who is summarily executed by a death squad knows this need no less than the liberal who gets subjected to a similar treatment by a self-styled Islamist government.

Under the rule of law come many other needs, chief among which is an independent judiciary and an accountable administration. Judges and the legal profession in the Middle East struggle against terrible odds of executive meddling, poor salaries and huge case load. It is imperative that the judiciary gets the support it deserves: first because it is there and hankers, as does the public at large, to fulfil its judicial function unrestrained.

Secondly, and in contrast to such pressure groups as human rights caucuses, the judiciary is part of the state, and executive power recognises the need for the legitimacy conferred by the judiciary as much as it fears it. This ambiguity is certainly not true for human rights groups, which need to expend many more efforts to increase the strength of the rule of law.

This brings up the third key element: a healthy and expanding civil society. For human rights activists, like the civil society of which they are part, belong to the other side of governance, and make governance "good" proportionately to their own richness and variety. A good theatrical and cultural scene, like the one developing again in Lebanon, helps the citizens air their needs and exercise their freedoms. Conversely, the pressure on the once flourishing film industry in Egypt narrows down the public space for discussion and debate.

Examples easily multiply. The press holds a particular importance, of course; as does the business community, for whom a healthy market cannot operate, without the rule of law to guarantee investment against the likely predators tied to the ruling security and political apparatus.

Here a footnote may be added over the much maligned "Arab intellectual/liberal", who is occasionally tagged with all the shortcomings of the world as liberal Middle Eastern societies appear increasingly difficult to establish. There is a peculiarity of the Middle East which, in contrast to the liberal pundits of former Communist Eastern Europe, renders the scene particularly hard for liberal advocates in the region. One is indeed appalled by the difficulty in finding names of opposition leaders, with which liberalism could be associated, in countries like Saudi Arabia, Morocco or Jordan. But this is not a full picture: there are and have been several liberal figures who suffer and have suffered for standing up to their governments.

This is particularly true of the Iraqi National Congress (INC), which has since 1992 struggled hard, despite many hiccups, to brandish the rule of law, democracy and federalism, as a coherent political programme in the face of Saddam Hussein's terrible legacy. Not surprisingly, the INC has been kept at bay by the Arab rulers, who fear contagion, and the support of Western powers has at best been muted.

Nor is it decisive for Arab liberals to open shop outside - their families, who remain behind, are not protected from the wrath of the local despots. It is also true that an exiled opposition tends to be ineffective. In addition, the Saudification of the Arab media abroad has not helped liberal opponents make their voices heard, and censorship is no longer a purely domestic phenomenon. But mostly, the Arab "intellectuals" cannot forget the difficult regional over determination imposed on their countries by Israel and its unconditional American backer. The more the Washington applaudimeter rises with Israel's violent behaviour, the more difficult it is for liberals in need of its natural Western supporters to turn West.

This problem has been endemic since 1948. Arab fear of association with the West and its beliefs cannot ease until Israel is made to deliver the bare minimum: not so much land for peace, but the unacceptability of the acquisition of territory by force. It is a cruel irony that the equation established in United Nations Resolution 242 was adamantly imposed on the Palestinians, whilst the Likud Prime Minister has now all but denounced it.

2. The economics of balanced production

The second rhythm of the longed-for reform is economic, and belongs to an obviously slower pace of change. Again, the vocabulary of change is universal. In its Middle Eastern application, the terms of economic development, no doubt, will cover the usual panoply of GDP, per inhabitant revenue, median income, rate of investment, productivity, trade balance, public debt, unemployment and the like.

These criteria are universal, and should not betray their purpose for assessing the health of Middle Eastern, Arab, or Islamic economies any more than their Japanese, Latin American or French counterparts. The picture is not reassuring in the Arab Middle East, and a rough comparison of such indicators since decolonisation gives cause for concern - that is when such figures are available.

In the majority of countries, the bureaucracies may churn out statistics. But whatever the rosy picture of employment in the books, one knows just from riding taxis round Cairo that one person needs many jobs for his family to survive. Nor are the Algerian hitin (wall supporters, derived from the vernacular Algerian Arabic hit, wall) among the North African youth a vain depiction of the obvious malfunctioning and wasting of upwards of half of the young and energetic workforce. Naturally all the economies cannot be put in the same bag, but Arab economies - in contrast to the non-Arab Middle East, Turkey and Israel - share low industrial competitiveness and little or no exports outside oil.

One need not accept the tag of inherent backwardness for Muslim societies. There is much to learn from Muslim Malaysia, and, closer to the region, from a country like Pakistan where the new money markets are a sure sign of capitalist (albeit uneven) growth.

Refining economic indicators and sticking to them is a worthy task for those who care, and good criteria for the invention of competitive wealth are still not being addressed seriously. Recent discussions between the European Union, Lebanon and Jordan over co-operation show that the priorities are not quite right, as the EU, with the support of World Bank analysts, tends to focus on opening channels of trade @ la GATT and @ la Article 85 of the Treaty of Rome, instead of encouraging those very criteria which Europe chooses for its own horizon for integration: low rate of inflation, reasonable budgetary deficit, stable parity of the currency, long-term low interest rates. These indicators, the apparatus needed to calculate them, and the means to improve them, should - rather than elusive trade agreements which economies have difficulty in supporting - be the prime object of co-operation across the Mediterranean.

3. The Middle East and the Muslim world in their own words

The third rhythm for reform is cultural, once called the ideological. This is the slowest rhythm, where the Middle East is particularly distinctive because of the special role of Islam in its history. Culture and ideas suffuse politics and economics more or less specifically, but they operate in the Middle East and the Muslim world within the legacy of a predominantly Islamic civilization of some antiquity.

Nowhere does this affect the present and future of the countries involved more than in the law - as one would appreciate from the distinctive call by all Islamic groups, without exception, for the pure and unadulterated return to Islamic law as the common law of the land.

There are two ways of emphasising Islamic law: one is to construct the whole outlook on those acid tests known in classical Islam, such as the cutting of the thief's hand, the stoning of the adulteress, the unilateral and exclusive right of the husband to repudiate his wife . . .

When Islamic law is reduced to excessive manifestations, it becomes, for its adamant advocates, a provocative tool against the rest of the world, and the West in particular (this is primarily what sets us apart, and it must be emphasised), and a weapon of intolerance in their own societies (whoever opposes us over the sacred law is an apostate;). Islamic law becomes, in this approach, the focus of the impending clash of civilizations, and the most convenient excuse for setting its advocates apart from those who hold power, and who, like the majority of the population, become renegades to be fought to the end.

But there is another way for advocating the rule of Islamic law, which looks at a unique tradition of refined and sophisticated legal thinking stretching back in a unique continuum over a millennium. This is the world of Islamic law defined as fiqh, a discipline full of subtleties, arguments and debate, which has produced innumerable compendia of law.

In this sense, a 'return to Islamic law' becomes one where the most severe legacy of colonialism - the cutting of societies from the language of the law which they had known for centuries in favour of alien French civil and English common laws - is addressed in the right manner. Instead of reducing law to a few provocative acid 'Islamic' tests, one can question the uprooting of a whole tradition and the people who have supported and carried it through thirteen centuries in the local languages (Arabic primarily). The process has already started, and several courts, most remarkably in Egypt, Yemen, and the United Arab Emirates, have initiated a slow but effective reversal of the colonial onslaught on the legal tradition of Islam.

How it can be reinforced and developed could represent the third major cultural challenge for reform. Since good governance is premised on the rule of law, the most difficult task ahead for the Arab and Muslim world may be precisely this: reappropriating its own rich and distinct traditions.

Footnote

* Copyright Chibli Mallat 1996.

Lecture delivered at the School of Oriental and African Studies, 22 October 1996, on the occasion of the book launch of The Middle East into the 21st Century, Ithaca Press.